Sometimes, oral argument can be misleading. An advocate can spend much of her time being battered by one or two Justices, leaving an uncareful observer to walk away thinking that the advocate’s chances are slimmer than they are, when one takes into account that there are nine Justices on the Court.

Something like that happened at the oral argument last Wednesday in Coleman v. Maryland Court of Appeals. The liberal Justices were quite actively involved, testing the petitioner’s theories (and proposing additional theories themselves) as to why Congress acted within its authority to enforce the Equal Protection Clause of the Fourteenth Amendment when it required employers to allow workers up to twelve weeks of unpaid leave for serious medical conditions under the so-called “self-care” provision of the Family and Medical Leave Act (FMLA). The answer to that question determines whether state employees can sue states for damages for violating the self-care provision. The Supreme Court has held that states’ sovereign immunity generally bars such damages, unless Congress abrogates that immunity. And Congress can abrogate that immunity only through a valid exercise of its power to enforce the Fourteenth Amendment. (There is no question that the FMLA is a valid exercise of Congress’s Commerce Clause power, so the case does not implicate states’ obligation to comply with the law; instead, the only issue is what kinds of suits workers can bring when as state violates the Act).

While the argument was dominated by Justices Ginsburg, Breyer, Sotomayor, and Kagan working through potential explanations as to why the statute might be valid, the conservative Justices, with the exception of Justice Alito (who was skeptical of the worker’s case) remained mostly on the sidelines. That silence was the most significant indication of the likely outcome of the case.

Professor Michael Foreman of Penn State’s Dickinson School of Law’s Civil Rights Appellate Clinic began by arguing that the self-care provision is designed to counter employers’ stereotypes of women as needing more leave than men, including pregnancy-related self-care medical leave. By requiring employers to provide that leave to men and women alike, he argued, the self-care provision diminished the incentives to hire only men. Justice Alito, however, questioned how the self-care provision did anything to push back against prejudiced employers’ disinclination to hire women – even if the employer must give the leave to men and women alike, an employer who thinks that women are more likely to actually use the leave would still have an incentive to pass over women.

Foreman also argued that the provision should not be viewed separately from the other leave provisions, including the family leave provision that the Court in Nevada v. Hibbs had previously deemed a valid exercise of Congress’s Fourteenth Amendment powers.

Deputy Attorney General John B. Howard, representing the state, began his argument by noting that, in fact, unlike the family leave at issue in Hibbs, men and women take roughly the same amount of self-care leave for medical conditions. But what should matter, Justice Sotomayor suggested, was employers’ beliefs about whether women would take more medical leave than men. If they had that belief (even if it was wrong), wouldn’t Congress be empowered to respond to the resulting discrimination by requiring uniform leave for both genders? Howard responded that Congress had already addressed the specific problem of discrimination based on pregnancy in the Pregnancy Discrimination Act. The real concern in this part of the FMLA, he argued, was not discrimination but rather the social and economic difficulties serious illnesses posed for all workers, regardless of gender. And to the extent that stingy leave policies might have a disproportionate effect on women, Congress could not use its Fourteenth Amendment powers to address that disparate effect because the Equal Protection Clause only prohibits intentional gender discrimination.

Justice Breyer then launched into a complex hypothetical intended to show that precisely because men would be equally likely as women to use self-care leave, the provision helped to offset a disincentive to hire women created by the family-leave provision which, employers might think, women are more likely than men to use.

(At one point, Justice Breyer lost track of the number of weeks of leave he had hypothesized and asked Howard, “How many weeks have we got?” “Ten,” Howard replied confidently. “I like these questions.”)

Responding to that reasoning, Justice Alito asked Howard whether the same reasoning would not also apply if Congress had provided for unpaid vacation leave, which men would also presumably take in equal numbers with women, thereby also offsetting the alleged disincentive created by the Act’s family leave provision. When Howard appeared to not immediately embrace the suggestion, Justice Sotomayor pointed out that it was a friendly question.

Justice Kagan returned to the issue of whether the Court should be focusing on the self-care provision by itself, or if it was enough that it was part of a broader package intended to address stereotypes about women and leave. Howard argued that the provision had to be justified on its own. After all, he noted, the self-care provision is a sufficient basis for workers to sue states, even if the state is fully compliant with the family leave provisions. And to the extent it had been suggested that Congress enacted that provision – which applies to any serious illness at all – in response to particular worries about pregnancy-related medical leave, Howard told the Court that of the forty federal cases he could find bringing claims under the self-care provision, only two involved pregnancy.

It is difficult to see the employee winning this case. Even while struggling to find a way to uphold the statute, the liberal Justices frequently expressed skepticism of the worker’s arguments. And had there been any real prospect of success, I would have expected the conservative Justices (particularly Justices Kennedy and Scalia) to have been more engaged. Justice Alito seemed troubled by the unfairness of the result – he asked the worker’s attorney whether, if the Court ruled against the damages claim, the worker could still get injunctive relief (a friendly question, he had to explain to the worker’s attorney, who initially said that injunctive relief was not sought; the state, however, later came to the rescue and pointed to a provision of the complaint that it said did state a claim for injunctive relief). And Justice Alito pressed the state on why it didn’t just waive sovereign immunity in this case. But his interest in exploring other ways for justice to be done for Mr. Coleman seems only to underscore that Justice Alito was unconvinced that Congress had validly given him a right to sue the state for damages without its consent.

Merits Case Pages and Archives

The court issued additional orders from the December 2 conference on Monday. The court did not grant any new cases or call for the views of the solicitor general in any cases. On Tuesday, the court released its opinions in three cases. The court also heard oral arguments on Monday, Tuesday and Wednesday. The calendar for the December sitting is available on the court's website. On Friday the justices will meet for their December 9 conference; our list of "petitions to watch" for that conference is available here.

Major Cases

Gloucester County School Board v. G.G.(1) Whether courts should extend deference to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought; and (2) whether, with or without deference to the agency, the Department of Education's specific interpretation of Title IX and 34 C.F.R. § 106.33, which provides that a funding recipient providing sex-separated facilities must “generally treat transgender students consistent with their gender identity,” should be given effect.

Bank of America Corp. v. City of Miami(1) Whether, by limiting suit to “aggrieved person[s],” Congress required that a Fair Housing Act plaintiff plead more than just Article III injury-in-fact; and (2) whether proximate cause requires more than just the possibility that a defendant could have foreseen that the remote plaintiff might ultimately lose money through some theoretical chain of contingencies.

Moore v. Texas(1) Whether it violates the Eighth Amendment and this Court’s decisions in Hall v. Florida and Atkins v. Virginia to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.

Pena-Rodriguez v. ColoradoWhether a no-impeachment rule constitutionally may bar evidence of racial bias offered to prove a violation of the Sixth Amendment right to an impartial jury.

Conference of December 9, 2016

FTS USA, LLC v. Monroe (1) Whether the Fair Labor Standards Act and the Due Process Clause permit a collective action to be certified and tried to verdict based on testimony from a small subset of the putative plaintiffs, without either any statistical or other similarly reliable showing that the experiences of those who testified are typical and can reliably be extrapolated to the entire class, or a jury finding that the testifying witnesses are representative of the absent plaintiffs; and (2) whether the procedure for determining damages upheld by the Sixth Circuit, in which the district court unilaterally determined damages without any jury finding, violates the Seventh Amendment.

Overton v. United States Whether, consistent with this Court's Brady v. Maryland jurisprudence, a court may require a defendant to demonstrate that suppressed evidence “would have led the jury to doubt virtually everything” about the government's case in order to establish that the evidence is material.

Turner v. United States (1) Whether, under Brady v. Maryland, courts may consider information that arises after trial in determining the materiality of suppressed evidence; and (2) whether, in a case where no physical evidence inculpated petitioners, the prosecution's suppression of information that included the identification of a plausible alternative perpetrator violated petitioners' due process rights under Brady.